I recently read Martha Nussbaum’s Liberty of Conscience for a reading group, and I found her recommendation of the American approach to religious liberty very convincing. There was one area, however, that I found less convincing, which was her definition of religion as basically a search for ultimate meaning. Her title seems to reflect that definition, but the American tradition does not — and consequently, neither does much of her argument in favor of that tradition.
Here’s why that definition — which is actually fairly common — cannot work. On the conceptual level, it robs “religious” convictions of any specificity. Specifically, it turns conscientious atheism into a kind of “religion.” (Such a move is justified in certain rhetorical and argumentative contexts, but at the same time, the force of that claim depends on its counterintuitive nature.) On the societal level, it allows any individual to put forward any arbitrary claim as entitling them to an exception from general laws, so long as that claim is couched in terms of “conscience.”
Of course, there is the proviso that such an exception can’t endanger the general public welfare, so no one can claim to have a right to murder, etc., simply because their conscience dictates. Even with that proviso in place, however, the defense of “religion” is different from the defense of “conviction” or “conscience” generally. To get at the difference, it’s necessary to get at what the “common sense” notion of religion is — it is that definition that the American legal tradition uses and that Nussbaum implicitly uses, even with her overly broad stated definition.
I think that the common sense definition of religion would exclude idiosyncratic claims of individuals as well as groups known as “cults.” That is, religion can’t be a matter of simply one person’s claim, whether that be an individual acting alone or a cult leader who has gathered a body of followers. Some kind of “critical mass” much be reached, both quantitatively and temporally. I don’t think a firm boundary is possible here — it’s more of a “heap”-like problem. Specifically, it’s a problem of authority — not the authority of any one person qua individual, but a disembodied authority that the body of believers (including leaders, even individual leaders as powerful as the pope) understands as preexisting. In philosophical terms, a religion has its own “objective spirit” or “big Other.” (Incidentally, this is one good example of where Nussbaum’s anti-“continental” stance deprives her of concepts that would be very helpful to her argument.)
Religious claims are arguments from authority insofar as they go beyond what generic public reason would dictate — that is, by definition they exceed the “overlapping consensus” that “everyone” can agree upon. At the same time, they are public claims insofar as they have recourse to an authority whose demands are publicly available. People who don’t accept the Roman Catholic Church as authoritative, for example, are nonetheless able to know what the Roman Catholic Church demands of its members and to assess the degree to which its members take those claims as authoritative, that is, to trace the basic contours of the debate “internal” to Catholicism. Therefore, no one could get away with the claim that, qua Roman Catholic, they can only eat kosher food and must be accomodated.
Strictly idiosyncratic individual claims — whether of an individual acting alone or of a particular “cult leader” — do not have that public availability and are not “religious” in the relevant sense. (The case of Mormonism shows how rapidly a “cult” can become a “religion” in the modern world — though by the time the US government started its legal persecution of Mormons, it had already clearly become a “religion,” at least as far as I can tell.)
To me, what is valuable about the American approach to “religion” is not only that it is more fair than the European approach, though that does seem to me to be the case and to be a very significant benefit. The more valuable thing is why it’s more fair, namely, that it tacitly acknowledges that society is not made up simply of atomized individuals who stand before the state one by one. Society is also made up of groups with their own relative authority and autonomy, and a just polity must make reasonable accomodations to those groups. The American approach demonstrates that the choice isn’t between radical individualism and a sheer communitarianism that would allow the religious groups complete free reign — some type of limitation on group activity is necessary.
So in an example Nussbaum refers to several times, the government can decide that Bob Jones University’s religious freedom to regulate interracial dating among students is outweighed by the government’s interest in promoting racial equality. In the same way, the government might recognize the authority of Sharia law over Muslim citizens while placing certain limitations on it due to the government’s interest in gender equality (though in point of fact, the US government is not nearly as “interested” in gender equality as it should be).
One thing that’s particularly impressive to me is that the American tradition gets at this tacit acknowledgment of the existence of non-state groups precisely through the very individualistic and Protestant notion of “conscience” and through a legal system that can only hear the claims of individuals (even groups are heard only qua “legal persons”) — “backfilling” the Enlightenment political tradition with a more reasonable approach, as it were.